Showjumper who claims she should never have been born sues GP for millions

Evie, who has spina bifida, has won a unique 'wrongful conception' case after a judge ruled her mother was not given the correct advice about taking folic acid supplements.

A showjumper born with spina bifida has won the right to what could amount to millions in damages after claiming ‘she should never have been born’.

Evie Toombes, 20, from Skegness sometimes spends 24 hours a day connected to tubes but has forged a career in showjumping competing against both disabled and able-bodied athletes.

Last month, in a unique ‘wrongful conception’ damages claim, she sued Dr Philip Mitchell over his failure to advise her mum, Caroline Toombes, to take vital supplements before getting pregnant.

She claimed that, had the GP told her mum that she needed to take folic acid supplements to minimise the risk of spina bifida affecting her baby, she would have put off getting pregnant until she had done so – and as a result, Evie would never have been born.

Now, Judge Rosalind Coe QC has backed Evie’s case in the High Court and awarded her the right to claim compensation.

The amount Evie will claim has not yet been calculated but her lawyers have said it will be ‘big’ in order to cover the cost of her life-long care needs.

The judge ruled that had Evie’s mum ‘been provided with the correct recommended advice, she would have delayed attempts to conceive’.

The landmark ruling, which was made yesterday, could have long-lasting implications for family doctors.

The court heard how Evie’s mum had gone to see Dr Mitchell at the Hawthorn practice to discuss plans to have her first child in February 2001.

Susan Rodway QC, Evie’s lawyer, said Caroline had made a ‘very precious decision to start a family’ after losing her own parents when she was young.

Mrs Rodway said Caroline had been ‘refraining from sexual intercourse’ until after she had ‘received advice’ from the GP.

But despite discussing folic acid during the consultation, Caroline claimed Dr Mitchell did not tell her of its importance in preventing spina bifida.

‘He told me it was not necessary,’ she told the judge. ‘I was advised that if I had a good diet previously, I would not have to take folic acid.’

Mrs Rodway said that, had Evie’s mum been properly advised by Dr Mitchell, she would not have gone on to conceive as quickly as she did.

‘It is her evidence she would have read up on it and wouldn’t have attempted to become pregnant until she was satisfied that she had protected herself as much as possible’, she said.

If she had indeed put off getting pregnant, she would have had a ‘normal, healthy’ baby – but one who was a ‘genetically different person’ to Evie, the QC added.

After her birth in November 2001, Evie was diagnosed with a lipomylomeningocoele (LMM), a form of neural tube defect to the spine leading to permanent disability.

Her mobility is said to be ‘very limited’ and she will depend more and more on a wheelchair as she grows older.

She also suffers with bowel and bladder issues, the court heard.

Michael De Navarro QC, for Dr Mitchell, denied liability, suggesting that Evie’s mum might already have been pregnant when she went to see the GP.

He told the judge that Dr Mitchell claimed to have given ‘reasonable advice’ about the desirability of folic acid supplements being taken.

It was his usual practice to tell prospective parents that 400 micrograms should be taken by those preparing for pregnancy and all through their first trimester once pregnant.

He claimed he would have said that if a mother had a good diet and good folic acid levels anyway, supplements would be less important, but denied saying they were not necessary.

But Judge Coe ruled against Dr Mitchell.

‘In the circumstances I find that Mrs Toombes was not pregnant at the time of the consultation with Dr Mitchell’, she said in her judgment.

‘She was not advised in accordance with the guidance to take folic acid prior to conception and for the first 12 weeks of pregnancy.

‘She was not advised about the relationship between folic acid supplementation and the prevention of spina bifida/neural tube defects.

‘Had she been provided with the correct recommended advice, she would have delayed attempts to conceive.

‘In the circumstances, there would have been a later conception, which would have resulted in a normal healthy child. I, therefore, find that the claimant’s claim succeeds on liability.’

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